This revision petition is directed against the judgment dated 24.5.2000 passed by the learned Additional District Judge, Sheikhupura affirming the decree of the learned Civil Judge dated 25.2.2000.
2. The facts giving rise to this petition are that Muhammad Amin, Petitioner No, 1, Akhtar Muneer, respondent and Khawaja Muhammad Khan are the real brothers. Petitioners 2 and 3 (minors) are the sons of Muhammad Amin, Petitioner No,
1. Plaintiff/respondent filed a suit on 7.12.1995 for declaration to the effect that the gift Mutation No, 609 by Muhammad Amin/Defendant No, 1/Petitioner No, 1 in favour of Defendants Nos, 2 and 3/Petitioners Nos, 2 and 3 attested on 20.6.1994 was void, illegal, collusive and ineffective upon his rights. As a consequential relief prayer for permanent injunction restraining the defendants from alienating the land was also made. It was averred in the plaint that the plaintiff resides in Saudi Arabia. He gave general power of attorney to Defendant/Petitioner No, 1, which was registered on 10.5.1994, for managing his property measuring 50 Kanals in Mauza Kakar Gill, Tehsil and. District, Sheikhupura. The Defendant No, 1 illegally and collusively gifted land measuring 15 Kanals 12 Marlas in favour of his sons, Defendants Nos, 2 and 3/Petitioners Nos, 2 and 3 vide Mutation No, 609 attested on 20.6.1994, whereas, he was not authorized to alienate the land in favour of his sons.
The suit was resisted alleging that the plaintiff had appointed the defendant/Petitioner No, 1 as his general attorney "as a result of a family settlement through the Court of Civil Judge, Haripur Hazara. The gift of the land was made with the consent of the plaintiff."
Out of the pleadings of the parties following issues were framed:--
1. Whether the gift in dispute is result of exceeding of authority by Defendant No, 1 and is illegal and collusive? OPP
2. Whether the suit is not maintainable for want of possession of plaintiff? OPD
3. Whether the suit is properly valued if so what is correct valuation? OPD
4. Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
5. Whether the suit is bad for mis-joinder? OPD
6. Whether the transaction took place as a result of family settlement? OPD
7. Relief.
The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 25.2.2000. The petitioners preferred an appeal before the District Judge, Sheikhupura which came up for hearing before the learned Additional District Judge, Sheikhupura who vide his judgment dated 24.5.2000 dismissed the suit.
3. Learned counsel for the petitioners contended that the learned Additional District Judge has misapplied the law. The relevant section pertaining to the registration of the power of attorneys is Section 33 of the Registration Act and not Section 28. He further contended that the petitioner was to receive land measuring 50 Kanals under the compromise deed dated 26.2.1992, Ext.D.6 filed in the Court of Civil Judge, Haripur Hazara. Learned counsel further urged that the power of attorney was given to the Petitioner No, 1 after payment of sale consideration and the same could not be revoked. Reliance was placed on Nazir Ahmad and others vs. Suleman and others (2000 YLR 527).
Conversely the learned counsel for the respondent submitted that Muhammad Amin, petitioner, the attorney of the Respondent No, 1 had no authority to alienate his land to his sons and that the respondent was not a party in the earlier suit.
4. I have gone through the judgments of the Court below, perused the record and considered the arguments of the learned counsel for the parties. The plaint of the earlier suit, Ext.D.3, order passed by the Civil Judge dated 26.9.1992, Ext.D.4, order passed by the Civil Judge dated 26.9.1992, Ext.D.4, compromise deed dated 12.9.1992, Ext.D.5 and, the statements of the parties, Ext.D.6 show that the respondent was not a party to the proceedings. He could not be bound by the compromise Ext.D.5.
The compromise deed dated 12.9.1992, Ext.D.5. also shows that respondent was not a party to it.
There was no privity of contract. The defence of the petitioner taken in written statement was that the land had been transferred under the compromise deed dated 12.9.1992, Ext.D.5. Since the respondent was not a party to the contract, said agreement/compromise is not binding upon him.
The Petitioner No, 1 has admittedly transferred 15 Kanals 12 Marlas land to his sons vide gift Mutation No, 609 attested on 29.6.1994, Ext.P.1. The law propounded by the Hon'ble Supreme Court on the scope of the holder of general power of attorney in alienating the property is that where the agent alienates the property of his principal in favour of those who are closely related to him, should in his own interest obtain the consent of his principal failing which the principal is at liberty to repudiate the transaction. The petitioner should have resorted to his principal (respondent) seeking his consent before transferring the land in favour of his sons. 'See Fida Muhammad vs. Pir Muhammad Khan (deceased) through Legel Heirs and others (PLD 1985 SC 341), Haji Faqir Muhammad and others vs. Pir Muhammad and another (1997 SCM R 1811) and Qadir Bakhsh and 10 others vs. Kh.
Nizam-ud-Din Khan and 4 others (2001 SCM R 1091). There is nothing on the record to show that any consideration was paid to the respondent before the land was gifted in favour of the Petitioners Nos, 2 and 3.
I tend to agree with the learned counsel for the petitioner that the relevant section for authentication of the power of attorney in Section 33 of the Registration Act and not Section 28, however, I have already held that the petitioner should have resorted to his principal before transferring the land as gift. The plea would not help the petitioner. The authority relied upon by the learned counsel for the petitioner is not applicable to the facts of the instant case.
5. For what has been stated above this petition has no merit and is dismissed leaving the parties to bear their own costs.